Subscribe to Justia's Free Newsletters featuring summaries of federal and state court opinions. Care Holdings, Civil Action 21-11627-FDS (D. Mass. 111-148, 10104(j)(2), 124 Stat. But whatever the merits of that argument may be, the law requires more. (Id. at 555 (citations omitted). According to the complaint, [f]or this reason, claims submitted to the state Medicaid agencies are presented to the federal government within the meaning of the [False Claims Act]. (Id.). In any event, as to those aspects of the alleged scheme, the allegations of the submission of false claims are similarly general. by. The Anti-Kickback Statute, 42 U.S.C. No published case in the First Circuit, however, has ever gone so far. (Id. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. It identifies specific hospitals, doctors, and medical practices that have allegedly benefited financially from the scheme. The district court had found that the relators had violated the filing and service requirements of the FCA because the new allegations were not substantially similar to those in the original complaint. 292-307 (practices in Washington state)). The complaint alleges that FMCNA made a calculated business decision to offer inpatient dialysis services to hospitals at prices well below cost in order to capture referrals of discharged patients to its dialysis clinics. 131). Co., Ltd., 842 F.3d 125, 130 (1st Cir. Attorneys admitted Pro Hac Vice must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of Massachusetts. . Instead, it alleges that FMCNA paid kickbacks for referrals on a widespread basis, and that therefore all claims for payment that it submitted to the government were false. (McManus, Caetlin) (Entered: 11/02/2021), (#9) ELECTRONIC NOTICE of Case Reassignment. Appearance form, Docketing Statement, and Transcript Report/Order form due 04/19/2023. Martin Flanagan and United States of America: Defendant: FRESENIUS MEDICAL CARE HOLDINGS, INC. doing business as Fresenius Medical Care North Save US$5.33. 45-49). 3730(e)(4)(B) (2006). Thus, the statute now defines original source as an individual who. Feb. 25, 2013), the mere publication of compensation information, without an allegation of fraud or misrepresentation, is not sufficient to trigger the bar. Cancellation and Refund Policy, Privacy Policy, and A). . 40.1(i) and with the approval of the Chief Judge hereby return the case for reassignment by the Clerk through the random draw appropriate for this case, under which all eligible judges -including me - will be eligible for proper assignment according to the luck of the draw. or recommend purchasing . 249 (NANI) (All . Of those, thirteen described a scheme to offer dialysis services to hospitals well below cost in order to capture referrals. (Compl. 29 at 10); (2) compensation is negotiated individually [based on] local factors . We believe that the compensation of our medical directors is in line with the market (Id. As to some of those medical practices, the complaint provides some amount of additional detail, although again it does not describe any specific false claims. 31 U.S.C. The complaint further alleges that FMCNA would typically pay high-performing physicians 10 to 12% of the clinic's topline revenue, whereas it would pay lower-performing physicians up to 6% of topline revenue. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. 2016). Martin Flanagan's Phone Number and Email Last Update. 1999)). Williams v. Renal Care Grp., et al., No. Relator Martin Flanagan has brought suit against defendant Fresenius Medical Care Holdings, Inc., d/b/a Fresenius Medical Care North America (FMCNA), 181). 750 F.3d at 120. WebSenior Vice President of Strategic Business Integrations Fresenius Medical Care. Martin Flanagan is a Director, National of Acute Dialysis Services at Fresenius Medical Care North America based in Waltham, Massachusetts. 274 (North Carolina) ([E]ach of these claims was false .); id. Phone: 1.619.238.4720 Email: inquiries@hoguebelonglaw.com Home Home Gonzales et al. 1320a-7b(b)(2). Stevens v. Vermont Agency of Nat. Judge Douglas P. Woodlock assigned to case. Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. 176). As its Western Division director of acute market development, he was 9(b). In assessing whether a given later-filed suit is based upon' publicly disclosed allegations, [courts] look to whether those allegations are substantially similar' to said allegations. Cunningham, 713 F.3d at 670. constitutes a false claim.); id. Instructions on how to link CM/ECF accounts to upgraded pacer account can be found at # https://www.mad.uscourts.gov/caseinfo/nextgen-current-pacer-accounts.htm#link-account. 353, 357 (Balboa); id. In other words, an AKS violation that results in a federal health care payment is a per se false claim under the FCA. Guilfoile v. Shields, 913 F.3d 178, 190 (1st Cir. 3730(e)(4)(A). In any event, as noted, the complaint does not include a single allegation concerning a single specific false claim. Free Services to Hospitals and Patients. As to each, it provides some specifics as to the scheme (such as referral trends and medical-director compensation levels). Lutz v. United States, 853 F.3d 131, 135 (4th Cir. Compl. United States v. Takeda Pharm. A claim is any request or demand . Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. The initial complaint has since been amended to add 125 pages of allegations, including multiple new claims. The complaint provides a detailed account of Fresenius acute care dialysis management business and alleges that it systematically used acute care dialysis management contracts with hospitals as loss leaders to secure patient referrals for Fresenius outpatient dialysis centers in violation of the FCA and AKS. See 31 U.S.C. 162). Kelly v. Novartis Pharm. WebMichael P. Flanagan, MD. (Id. Because he did not present those new claims to the government, that portion of the amended complaint alleging false claims based on that conduct will be dismissed. Learn more about the survey. United States ex rel. 270-84 (ENA and other practices in North Carolina); id. 01 Jun 2022. Medicaid is a state-administered program where each state sets its own guidelines concerning eligibility and services, with funding coming jointly from the states and the federal government. (McManus, Caetlin) (Entered: 11/02/2021), (#10) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #5 Motion for Leave to Appear Pro Hac Vice Added Megan S. Heinz. Id. As noted, there are no allegations at all concerning the payments of claims under the CHAMPUS/TRICARE or CHAMPVA programs. The description of the alleged scheme consisted of 25 paragraphs. 1:20-CV-11927 | 2020-10-26, U.S. District Courts | Other | . WebFlanagan v. Fresenius Medical Care Holdings, Inc., No. 1320a-7b(b), and the resulting claims to Medicare were tainted by illegal kickbacks in violation of the False Claims Act. Appearance form, Docketing Statement, and Transcript Report/Order form due 04/19/2023. Fifth, it alleges that FMCNA entered into favorable joint-venture agreements (JVAs) with physician groups to induce them to make referrals. ESRD expenditures by Medicare exceed $40 billion annually. Suppose, for example, that in a world free from kickbacks, 25% of the dialysis services business of FMCNA would have been captured by competitors. Martin Flanagan. As is often the case with qui tam actions, the issue is not whether the complaint alleges an unlawful scheme-it does, in considerable detail-but whether it actually pleads a violation of the False Claims Act. I understand that the relevant personnel have since received training to avoid such errors in the future. 83). Those arguments, however, are unavailing. (Id. 217). (McManus, Caetlin) (Entered: 11/22/2021), Docket(#17) MOTION for Leave to Appear Pro Hac Vice for admission of Noah M. Rich Filing fee: $ 100, receipt number AMADC-9065658 by Martin Flanagan. Dismissal is appropriate if the complaint fails to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory. Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. The complaint alleges various methods by which FMCNA improperly induced the referral of patients to its dialysis clinics. First, it alleges that FMCNA offered remuneration to hospitals in two ways: by entering into contracts that provided no-cost and/or below-cost inpatient dialysis services, and by providing significant free services, including free dischargeplanning services, free in-service training to staff, free training to patients, and free quality assessment and improvement data analysis to hospitals. Counsel may need to link their CM/ECF account to their upgraded individual pacer account. of Cunningham v. Millennium Lab'ys of Cal., Inc., 713 F.3d 662, 669-70 (1st Cir. (Id. (Woodlock, Douglas) (Entered: 11/02/2021), Docket(#7) NOTICE of Appearance by Abraham R. George on behalf of United States of America (George, Abraham) (Entered: 10/18/2021), Docket(#6) MOTION for Leave to Appear Pro Hac Vice for admission of James F. Bennett Filing fee: $ 100, receipt number AMADC-9005666 by Fresenius Medical Care Holdings, Inc.. (Attachments: #1 Affidavit Certification of James F. Bennett)(Durant, Maria) (Entered: 10/13/2021), Docket(#5) MOTION for Leave to Appear Pro Hac Vice for admission of Megan S. Heinsz Filing fee: $ 100, receipt number AMADC-9005610 by Fresenius Medical Care Holdings, Inc.. (Attachments: #1 Affidavit Certification of Megan S. Heinsz)(Durant, Maria) (Entered: 10/13/2021), Docket(#4) NOTICE of Appearance by Maria R. Durant on behalf of Fresenius Medical Care Holdings, Inc. (Durant, Maria) (Entered: 10/07/2021), Docket(#3) NOTICE of Appearance by William H. Kettlewell on behalf of Fresenius Medical Care Holdings, Inc. (Kettlewell, William) (Entered: 10/07/2021), Docket(#2) Case transferred in from District of Maryland; Case Number 14-cv-00665-GLR. (Id. 22). (McManus, Caetlin) (Entered: 11/02/2021), Docket(#9) ELECTRONIC NOTICE of Case Reassignment. (Id. Flanagan v. Fresenius Medical Care Holdings, Inc. (#18) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #17 Motion for Leave to Appear Pro Hac Vice Added Noah M. Rich. A more recent docket listing (Id. (McManus, Caetlin) (Entered: 11/22/2021), (#15) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #13 Motion for Leave to Appear Pro Hac Vice Added W. Scott Simmer. 89). 29 at 10). Accordingly, [f]ailure to comply with these mandatory threshold requirements warrants dismissal of the qui tam complaint with prejudice. United States ex rel. Where the defendant allegedly caused a third party to submit a false claim to the government, rather than submitting the false claim itself, a more flexible standard applies, under which Rule 9(b) is satisfied by providing factual or statistical evidence to strengthen the inference of fraud beyond possibility without necessarily providing details as to each false claim submitted. U.S. ex rel. (Id. . medical director agreements that compensated physicians in excess of fair market value and contained sticks and carrots, in the form of onerous non-competition covenants and medical directorship rights of first refusal to provide medical director services at other centers; non-fair market value joint venture arrangements that allegedly did not comply with applicable fraud and abuse safe harbors, both because physician referral sources often held more than a 40% equity interest in such centers and because they were offered equity in such centers at less than fair market value. FMCNA is a wholly-owned subsidiary of Fresenius Medical Care AG & Co. KGaA, which is located in Bad Homburg, Germany. FMCNA has moved to dismiss the amended complaint on the grounds that (1) the amended complaint is essentially a new complaint and should therefore have been filed under seal as required by 31 U.S.C. Join Facebook to connect with Martin Flanagan and others you may know. It appears, therefore, that the government may have suffered little or no actual financial loss. . The plausibility standard is not akin to a probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). On February 5, 2021 a long-time former Fresenius Medical Care North America (Fresenius) employee, Martin Flanagan, filed a qui tam relator amended to purchase . 132, 140). Under the circumstances, the Court concludes that it does not. Michael D. Flanagan is a Internist in Bryn Mawr, PA. Find Dr. Flanagan's phone number, address, insurance information, hospital affiliations and more. But nowhere does the complaint identify a specific physician who made a specific referral as a result of a specific unlawful practice that resulted in a specific false claim. 3/17/2023 8:35 PM. 331). (Id. (Id. However, the First Circuit has rejected the holding in Poteet, explaining that earlier-filed complaints must provide only the essential facts to give the government sufficient notice to initiate an investigation into allegedly fraudulent practices and emphasizing that Section 3730(b)(5) contains no exceptions. United States ex rel. It then alleges: Similarly, for North Carolina, the complaint provides a table of Medicaid (but not Medicare) revenue for a period of six years at fourteen dialysis centers. 119 (2010). Martin Flanagan is a Senior National Account Manager at Quick International Courier based in Jamaica, New York. 242-55 (NANI in Illinois); id. . (Id. 19). 2014), the First Circuit affirmed the denial of a motion to amend the complaint a third time. Chief Judge F. Dennis Saylor, IV assigned to case. 2013) (internal quotation marks and citations omitted). Internal spreadsheets from the Western Business Unit show that FMCNA recorded losses on its contracts with hospitals, often in excess of the budgeted losses. Medical directors are not FMCNA employees, but physicians in private practice. Moreover, referral sources were routinely permitted to own more than 40% of the joint venture investment, contrary to HHS OIG guidance. Flanagan v. Fresenius Medical Care Holdings, Inc. 23-1305 | U.S. Court of Appeals, First Circuit | Justia Justia Dockets & Filings First Circuit U.S. Court of Appeals, Wilson v. Bristol-Myers Squibb, Inc., 750 F.3d 111, 118 (1st Cir. The U.S. Justice Department said on Tuesday it joined a whistle-blower lawsuit against Fresenius Medical Care AG, the world's biggest dialysis care company, on claims that it defrauded Medicare. Martin Flanagan is a resident of Texas. Third, defendant contends that relevant public disclosures occurred in multiple SEC filings by FMCNA. 308-20). (Attachments: #1 Affidavit Certificate of Jamie Bennett in Support of Motion for Appearance Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), Docket(#13) MOTION for Leave to Appear Pro Hac Vice for admission of W Scott Simmer Filing fee: $ 100, receipt number AMADC-9065559 by Martin Flanagan. may be available from PACER. 321-31). Scott Downing at 312.624.6326 or sdowning@beneschlaw.com, Mark Silberman at 312.212.4952 or msilberman@beneschlaw.com, Juan Morado Jr. at 312.212.4967 or jmorado@beneschlaw.com, Whistleblower Lawsuit Against Fresenius Alleges Unlawful Arrangements with Hospitals and Nephrologists Intended to Induce Dialysis Referrals. See East Bay Mun. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 208 (1st Cir. To begin, it appears-although the complaint is ambiguous at times-that the Medicare claims at issue were submitted to the federal government by FMCNA itself, and that the Medicaid claims were submitted by various state government agencies based on claims that FMCNA submitted to those agencies.As to the Medicare claims, therefore, the complaint must be evaluated according to the ordinary standard applicable in False Claims Act cases, not the more flexible standard applicable where the defendant allegedly caused a third party to submit false claims. 167-69). . 91, 93). Nor is there any contention that any dialysis services that were paid by Medicare in fact should have been paid by a private payor. See Id. (Id. FMCNA generated reports to track which medical directors and their practice groups referred patients to outside clinics and the reasons why. (Id. The first question, for the purpose of applying the first-to-file bar, is whether the first-filed complaint contained all the essential facts of the fraud later alleged. United States v. Millenium Lab'ys, Inc., 923 F.3d 240, 252 (1st Cir. (McManus, Caetlin) (Entered: 11/22/2021), (#14) MOTION for Leave to Appear Pro Hac Vice for admission of Jamie Bennett Filing fee: $ 100, receipt number AMADC-9065597 by Martin Flanagan. Want to Read. 2005)). v. Fresenius Medical Care [$6,000,000.00] - San Diego Sexual Harassment Attorneys, Sexual Harassment Lawyers in San Diego, CA. The objective of the essential facts test is to determine whether the statutorily required threshold for notifying the government of the fraud alleged in the later-filed suit has been met. 11). (Finn, Mary) (Entered: 10/05/2021). Paperback. A subscription to PACER is required. . Id. 334-35). There is, of course, considerable logic to relator's arguments: if 100% of the business of FMCNA is tainted by kickbacks, and if 80% or more of the business of FMCNA involves government payors, it follows that FMCNA must have submitted many false claims. CEO Martin Flanagan still sees a growth opportunity in Chinaand a big risk in Bitcoin. Relator first alleged fraud concerning joint ventures in the amended complaint, which was filed in 2021. Although this financial incentive encourages would-be relators to expose fraud, it also attracts parasitic relators who bring FCA damages claims based on information within the public domain or that the relator did not otherwise discover. United States ex rel. Relator relies on the Sixth Circuit's holding in United States ex rel. As to the claims arising from that scheme, the complaint alleges the following: As set forth above, the allegations of the complaint concerning joint-venture agreements, free services to hospitals and patients, and free practice-management services to physicians will be dismissed for failure to comply with the notification and other requirements of the False Claims Act. 83). WebMartin Flanagan. 13 at 23); and that (3) If physicians and other referral sources cease referring patients to our dialysis clinics . If you do not agree with these terms, then do not use our website and/or services. Mar 17, 2023 11:00am. 02 Jun 2016. Employed by Penn State Health. (Id.). Martin Flanagan. 343). . 142-43). Access this case on the Massachusetts District Court's Electronic Court Filings (ECF) System. For the sake of simplicity, the Court will focus first on the Medicare claims. This action is taken to insure the parties receive timely notice of the properly assigned presiding judge and is without prejudice to consideration by the Court as a whole whether Local Rule 40.1 should be amended in some fashion to eliminate any further misunderstanding by the Clerks Office. Dist. The remaining six paragraphs describing the alleged scheme consisted of an introductory paragraph (Compl. For the foregoing reasons, defendant's motion to dismiss is GRANTED. President, National Cardiovascular Partners; President, Spectra Laboratories. For example, in United States ex rel. The complaint goes on to identify four specific sets of joint-venture arrangements (Balboa, NANI, ENA, and Dallas Nephrology Associates) and again alleges that all claims submitted in connection with patients treated by those physicians or facilities were tainted by kickbacks and therefore false. . June 21, 2005). (Entered: 10/05/2021), (#1) ELECTRONIC NOTICE of Case Assignment. If the government declines to intervene and the qui tam case is unsealed, further proceedings are governed by 31 U.S.C. 3.06 avg rating 31 ratings published 2005. 2023-03-21, U.S. Courts Of Appeals | Other | Full title:UNITED STATES ex rel. (Danieli, Chris) (Entered: 11/02/2021), (#8) Judge Douglas P. Woodlock: ELECTRONIC ORDER FOR TRANSFER entered. (Id.). First, it added a second definition for original source. Id. (Id. For example, medical directors at 160 FMCNA clinics made more than $300,000 in 2019, well above the average compensation of medical directors at similarly located clinics. Documents and certified copy of docket sheet and order of transfer received from the Clerk in the transferor district via Email. Chris Churchill. The CKD complaint alleged that FMCNA used joint-venture agreements as a way to provide remuneration to physicians in exchange for referrals. (Am. . Quick View. facetime call on chromebook; Winkelman v. CVS Caremark Corp., 827 F.3d 201, 213 (1st Cir. v. Balfour Beatty Infrastructure, Inc., 2014 WL 2611312, at *2 (N.D. Cal. Est. 3729(a)(1)(C) (Count 3). However, general allegations of illegal or fraudulent practices, without more, are not sufficient to state a claim under the False Claims Act. (Id. 172, 206-13). (Attachments: #1 Affidavit Certificate of Noah M. Rich in Support of Motion for Appearance Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), (#16) Chief Judge F. Dennis Saylor, IV: ELECTRONIC ORDER entered granting #14 Motion for Leave to Appear Pro Hac Vice Added Jamie Bennett. See Wilson, 2011 WL 2462469, at *7. 9(b). Relator here has not attempted to do so. (Id. . Please contact one of the authors below or a member of theBenesch Healthcare+ Practice Groupif you have questions regarding information contained in this Client Alert. (Id. Rather than spend time at this point disputing and, if necessary clarifying rule language, however, I have simply consulted with the Chief Judge and under L.R. 25). L. No. 154). The allegations in CKD described a scheme whereby FMCNA allegedly paid kickbacks to doctors with whom it had entered into joint-venture agreements. At most, the filings describe a set of circumstances that might be vulnerable to manipulation. And, presumably, it has other weapons in its arsenal for dealing with fraudulent conduct. (Attachments: #1 Affidavit Certificate of Jamie Bennett in Support of Motion for Appearance Pro Hac Vice)(Sullivan, Christopher) (Entered: 11/22/2021), (#13) MOTION for Leave to Appear Pro Hac Vice for admission of W Scott Simmer Filing fee: $ 100, receipt number AMADC-9065559 by Martin Flanagan. However, even assuming compliance with those requirements, the claims concerning joint-venture agreements would be barred in any event. 3730(c)(3). (Id. a. [ ]. As to the submission of false claims, it makes the following general allegations: The complaint also describes the compensation paid to a number of specific medical directors around the United States. Defendant contends that the amended complaint should be dismissed for failure to comply with the pre-suit requirements of the FCA, 31 U.S.C. 170. Third, it alleges that FMCNA provided physicians free or below-cost practice-management services. (Id. 233 (Diablo Nephrology) (Every claim for reimbursement [FMCNA] submitted to [f]ederal health care programs associated with the treatment of these patients was tainted by kickbacks and therefore false within the meaning of the FCA.); id. 3729(b)(2). Counsel may need to link their CM/ECF account to their upgraded individual pacer account. Because the False Claims Act is a statute directed at fraudulent conduct, Rule 9(b) requires both that the circumstances of the alleged fraud and the claims themselves be alleged with particularity. Lawton ex rel.
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